Helena Consol. Water Co. v. Steele
| Decision Date | 07 June 1897 |
| Citation | 49 P. 382,20 Mont. 1 |
| Parties | HELENA CONSOL. WATER CO. v. STEELE, Mayor, et al. |
| Court | Montana Supreme Court |
Appeal from district court, Louis and Clarke county; Henry N. Blake Judge.
Suit by injunction by the Helena Consolidated Water Company against William D. Steele, mayor, and others, clerk and council, of the city of Helena. From a restraining order, defendants appeal. Reversed.
This is a suit by injunction. It appears from the record that on the 29th day of July, 1895, an election was held in the city of Helena by which the legal voters of said city decided that the city might extend the limit of its indebtedness for the purpose of securing a water supply under the authority of section 6, art. 13, of the constitution of the state, and the laws passed in pursuance of such constitutional provision. At a meeting of the city council of said city, after it had been determined by said election that the city might extend its indebtedness for the purpose aforesaid, the city council, by resolution, directed the city clerk to advertise for bids for a supply of water to be furnished to, owned and controlled by, said city in accordance with plans and specifications which had theretofore been adopted by said city council. Thereafter the plaintiff water company commenced this suit to restrain the city from receiving bids for said purpose; the plaintiff contending in its complaint that it had established and was maintaining a water system in said city, and that by means of its said system the city had been for a long time furnished, and was then being furnished, with an ample supply of pure and wholesome water, and that under the provisions of subdivision 64 of section 4800 of the Political Code of the state the city was compelled by ordinance to purchase the water system of plaintiff, and had no authority to advertise for bids or to enter into any contract with any other person or persons, corporation or corporations, for a system of water supply for the inhabitants of said city. The defendants answered, and, among other things, deny that the city is prohibited from purchasing or supplying itself with another water system for the use of the city and its inhabitants by the provisions of the law above referred to or by any other law. On a hearing the court issued its order restraining the defendants from advertising for bids for a water plant to be owned and operated by the city of Helena, in accordance with the prayer in the complaint. From this order the appeal is prosecuted.
M Bullard, H. G. & S. H. McIntire, and Toole & Wallace, for appellants.
B. P Carpenter and Clayberg, Corbett & Gunn, for respondent.
PEMBERTON C.J. (after stating the facts).
There are a number of errors assigned in this record. The action of the court in striking out parts of appellants' answer is complained of. It is contended that the law referred to in the statement was not enacted in accordance with the requirements of the constitution. But we agree with counsel for respondent that the only question presented for our determination is as to the constitutionality of the last two provisos of subdivision 64 of section 4800 of the Political Code. We shall not, therefore, discuss any minor matters involved, but proceed to an investigation of the real issue presented. The two provisos involved constitute part of the law in relation to the legislative powers of incorporated cities and towns in this state. They read as follows:
Has the legislature, by this enactment, undertaken to impose upon the city of Helena and its inhabitants an obligation unauthorized by the constitution, without the consent and against the will of the city council and the legally constituted authorities of the city? By the first of these two provisos it became the duty of the city, before taking action to procure a water supply to be owned or controlled by the city, to pass an ordinance notifying the plaintiff, the owner of the water supply system then in operation, that it desired to purchase the plant and franchise of the plaintiff upon such terms as might be agreed upon, and in case of disagreement the city would proceed to acquire the plant of plaintiff by condemnation proceedings. The second proviso makes it absolutely incumbent upon the city, and all cities similarly situated, to purchase whatever water plant or system is in operation and owned by any person or corporation under contract entered into with or franchise granted by the city or town, at the time such city or town decides to procure own, or control a water system of its own. If any city or town desires to own its own water plant or system, this law requires it to purchase whatever water plant or system is owned or controlled by any person or corporation under any contract or franchise entered into with or granted by said city or town. The law compels the city or town to purchase, in one of the ways specified, whatever plant or system is so owned or controlled in said city or town by any person or corporation under any contract entered into with or franchise granted by said city or town. The city or town has no discretion in the matter. The requirements of the statute are compulsory. To purchase such plant or system necessarily requires the city or town to incur an indebtedness. When an indebtedness is incurred by a city or town, it necessarily requires the assessment of taxes upon the property of the inhabitants, and the collection thereof, to meet and discharge such indebtedness. Is such indebtedness or obligation such a one as the state has the right to impose upon a city or town, or compel a city or town to assume without its consent? A city or town is bound to do and perform, and may be compelled to perform, certain public duties. But there are certain local and private obligations and offices which a city or town may or may not perform, and which they cannot be compelled by the state to perform. Discussing and distinguishing the questions here involved, Judge Cooley, in People v. Common Council of Detroit, 28 Mich. 228, says: "In People v. Hurlbut, 24 Mich. 44, we considered at some length the proposition which asserts the amplitude of legislative control over municipal corporations, and we there conceded that, when confined, as it should be, to such corporations as agencies of the state in its government, the proposition is entirely sound. In all matters of general concern there is no local right to act independently of the state; and the local authorities cannot be permitted to determine for themselves whether they will contribute through taxation to the support of the state government, or assist when called upon to suppress insurrection, or aid in the enforcement of the police laws. Upon all such subjects the state may exercise compulsory authority, and may enforce the performance of local duties, either by employing local officers for the purpose, or through agents or officers of its own appointment. The same doctrine was declared in People v. Mahaney, 13 Mich. 481, and in Bay City v. State Treasurer, 23 Mich. 503. It was also recognized in the statement that in the levy of taxes for purposes of general concern the municipal bodies cannot demand a right to be consulted, and their consent is immaterial. And we concur fully in the views which have been expressed by other courts in the cases to which our attention was called on the argument that, as regards duties which the people in the several localities owe to the commonwealth at large, they cannot be allowed a discretionary authority to perform them or not, as they may choose. Such an authority would be wholly inconsistent with anything like regular or uniform government in the state. But we also endeavored to show in People v. Hurlbut that, though municipal authorities are made use of in state government, and as such are under complete state control, they are not created exclusively for that purpose, but have other objects and purposes peculiarly local, and in which the state at large, except in conferring the power and regulating its exercise, is...
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